Opinion
No. 57584-8-I.
June 4, 2007.
Appeal from a judgment of the Superior Court for King County, No. 02-1-06083-4, Bruce W Hilyer, J., entered December 30, 2005.
Kevin Gilbert appeals his conviction of one count of murder in the second degree and one count of assault in the first degree, arguing he was denied his constitutional right to an impartial jury and there was insufficient evidence to establish his identity as the shooter. Gilbert also argues the sentencing court exceeded its authority by imposing a firearm enhancement and by ordering a biological sample for DNA testing. We affirm.
FACTS
Kevin Gilbert lived in apartment E-202 of the Meridian Ridge apartment complex. On August 24, 2002, Gilbert, his best friend, Damiean Clewis, Kassy Gordon, and two of her friends went to a party at Jon and Christine Hendersons' (collectively, the Hendersons) apartment, K-104.
At approximately 3:00 a.m., Aaron Below and Brent Weibl left a different party at Meridian Ridge. As they were walking through the complex, a young black man on a bicycle, named "LP" or "Red", approached Below and Weibl and told them about the party at the Hendersons'. The three of them decided to go to the Hendersons' apartment. When Weibl, Below, and Red arrived at the Hendersons', the party was ending and Clewis and Gilbert were outside on the patio. Weibl started talking to Clewis. At some point, Clewis got upset when Weibl called him "Cuz." Clewis told Weibl, "don't Cuz me, don't Cuz this, this BGD, this is BGD, don't Cuz me." Shortly thereafter, Below and Weibl left to go back to their party.
Weibl and Below told their friend Patrick Carlson what had occurred and asked Carlson to go back to the Hendersons' with them. On their way back to the Hendersons', Weibl, Below, and Carlson confronted Clewis and Gilbert in the area between buildings K and E. Clewis testified that during the confrontation, someone asked whether Gilbert "had strap?" Below said he heard someone say they were going to get a strap and saw Gilbert run off.
Strap is a slang term for gun.
After Gilbert left, Clewis and Below fought. Clewis managed to get away from Below and ran to Gilbert's apartment to get him, but Gilbert was not there. Clewis then ran back to the area between buildings K and E. Carlson, Weibl, and Below were still there. After Clewis saw Gilbert standing near building K, Clewis ran over and punched Carlson in the face. Seconds after Clewis punched Carlson, a gun was fired, hitting Carlson in the chest. Below testified he saw a muzzle flash coming from the area near building K and the shooter was an African American male.
After the gunshot, Clewis ran up the hill toward Below. Below testified that as Clewis was running toward him, he saw a person running up the hill behind Clewis. Below also testified that Clewis did not have anything in his hands as he approached. After Clewis tackled Below, a second shot was fired hitting Below in the back. Carlson died from the gunshot wound to his chest. Below suffered severe internal injuries.
The police recovered two .25 caliber shell casings from the area between buildings K and E. The police also recovered a box of .25 caliber ammunition from Gilbert's apartment. The number of rounds necessary to fill a magazine were missing from the box. Forensic scientist Evan Thompson concluded that the two .25 caliber shell casings the police recovered matched the bullets taken from Carlson and Below. Thompson also concluded the bullets were fired from the same gun, which was probably a Beretta. A close friend of Gilbert's testified that he sold Gilbert a .25 caliber Beretta a few weeks before the shooting.
The State charged Gilbert with one count of second degree murder and one count of first degree assault while armed with a firearm. A jury convicted Gilbert as charged. The court granted Gilbert's motion for a new trial.
The State also charged Gilbert with one count of assault of Carlson, but moved to dismiss it after the jury convicted Gilbert of the murder charge.
At the beginning of the second trial during voir dire, the court asked whether any of the jurors had any bias or prejudice that would prevent a fair trial. In response, Juror ten stated that, "[w]ith the number of things I have heard about in the news and read about in the news where very serious charges have been dropped for one reason or another, I feel if a prosecution's willing to undergo a three-week trial, they gotta feel they've got him cold." The court asked Juror ten whether he would be able to follow the instruction to presume Gilbert innocent and only convict if the State proved beyond a reasonable doubt every element of the crime charged. Juror ten replied, "I probably can do it, but I would go in prejudice [sic] in favor of the prosecution." Based on Juror ten's response, the court dismissed Juror ten for cause.
Gilbert moved for a mistrial based on the statements of Juror ten. The court denied the motion but allowed defense to follow up and ask the other jurors about Juror ten's statements. "[I]f you want to ask further questions [about Juror ten's statement] I'm not going to foreclose you, and you can reference the comments the juror made if you think that's appropriate." During further questioning, defense counsel asked the jurors whether they "kind of" agreed with Juror ten's statements.
. . .[Juror ten] said, if they got this far to do a three-week trial, they must have him cold, and he looked at the prosecutor's table. So I guess I'd just like to hear from some of you, some may agree, but some of you may disagree, and in all candor, that's really what we want to know, we want to know how you feel.
So, could I have a quick show of hands how many kind of agree with number [ten]?
In response, many jurors disagreed with Juror ten, a number of jurors said they were neutral, and four jurors indicated they "kind of" agreed. Of these four, three were eventually excused.
The four jurors were Jurors six, eight, twelve and fifty-eight. Juror six was excused for hardship after he informed the court that he could not miss two weeks of work. Defense counsel exercised a preemptory challenge for Juror twelve. Juror fifty-eight was dismissed for cause after he told defense counsel he had a number of friends at the Kent Police Department and that it would be difficult for him to overcome his bias toward police.
At the very end of the second day of voir dire, defense counsel asked, "is there anything any of you would like to bring up, to mention that's kind of been on your conscience on behalf of Mr. Gilbert before I conclude my examination?" In response, Juror eight said he thought he might have a bias toward law enforcement, but could set it aside. Defense counsel then asked Juror eight whether he thought he could still give Gilbert a fair trial and Juror eight stated that he could. Defense counsel did not challenge Juror eight for cause or use a preemptory challenge to dismiss Juror eight.
The jury found Gilbert guilty as charged and found that he was armed with a firearm at the time of the crimes. The court imposed a standard range sentence.
ANALYSIS
Constitutional Right to an Impartial Jury
Gilbert claims the court violated his constitutional right to an impartial jury in denying his motion for a mistrial. Specifically, Gilbert contends Juror ten tainted the jury pool. Gilbert also contends Juror eight demonstrated actual bias and should not have been allowed to deliberate.
The right to trial by an impartial jury is guaranteed by article I, section 22 of the Washington Constitution and the Sixth Amendment to the United States Constitution. State v. Gonzales, 111 Wn. App. 276, 277, 45 P.3d 205 (2002). The trial court is in the best position to determine whether a juror can be fair and impartial based on observations of the juror's mannerisms, demeanor, and general behavior. State v. Noltie, 116 Wn.2d 831, 839, 809 P.2d 190 (1991).
The court's decision to deny a request for a mistrial is within the sound discretion of the trial court, and this court will not disturb that decision unless it was an abuse of discretion. State v. Lewis, 130 Wn.2d 700, 707, 927 P.2d 235 (1996). A court abuses its discretion if its decision is manifestly unreasonable or based on untenable grounds or for untenable reasons.State v. Bankston, 99 Wn. App. 266, 268, 992 P.2d 1041 (2000).
Gilbert relies on Mach v. Stewart, 137 F.3d 630 (9th Cir. 1998), to argue that Juror ten's comments tainted the jury pool, denying him the right to an impartial jury. Mach is distinguishable.
In Mach, the defendant was on trial for sexual abuse of a minor. Mach, 137 F.3d at 631. During voir dire, one prospective juror, after informing counsel that she worked for Child Protective Services (CPS) and had a psychology background, stated that in the three years she had worked for CPS, every single allegation a child had made about sexual abuse was proven true. Mach, 137 F.3d at 632. In response to further questioning, the juror repeated her position and described her experience working with psychologists and psychiatrists. Mach, 137 F.2d at 632. The court struck the juror for cause, but denied the defendant's motion for a mistrial. Mach, 137 F.3d at 632.
The Ninth Circuit Court of Appeals reversed and held that the statements were inflammatory and directly connected to guilt and that "at a minimum, when Mach moved for a mistrial, the court should have conducted further voir dire to determine whether the panel had in fact been infected by . . . [the prospective juror's] expert-like statements." Mach, 137 F.3d at 633.
Here, unlike the juror in Mach, Juror ten had no experience related to the case and based his belief that "they gotta feel they've got him cold" on what he had read in the news. And, unlike in Mach, Juror ten only made the statement one time. In addition, during questioning to determine the impact of Juror ten's comment, the record does not indicate the statement negatively affected Gilbert's right to a fair trial.
Gilbert also argues Juror eight demonstrated actual bias and his constitutional right to an impartial jury was violated because Juror eight was allowed to deliberate.
If a biased juror is allowed to deliberate, the defendant is denied his constitutional right to trial by an impartial jury, requiring dismissal. Gonzales, 111 Wn. App. at 282. A juror demonstrates actual bias by "the existence of a state of mind on the part of the juror in reference to the action, or to either party, which satisfies the court that the challenged person cannot try the issue impartially and without prejudice to the substantial rights of the party challenging. . . ." RCW 4.44.170(2). A prospective juror's expression of preference toward police testimony does not, standing alone, conclusively demonstrate bias. Gonzales, 111 Wn. App. at 281.
Gilbert argues that this case is analogous toGonzales, where the court reversed and remanded for a new trial because a juror was allowed to deliberate who demonstrated unequivocal bias toward the State.Gonzales, 111 Wn. App. at 281. In Gonzales, a juror stated she was more likely to believe police testimony, repeated it several times, and responded that she did not know if she could presume the defendant, Gonzales, innocent. Gonzales, 111 Wn. App. at 278-79. This court reversed, noting that the juror unequivocally admitted a bias regarding the police, believed the bias would affect her deliberations, did not know if she could presume that Gonzales was innocent in the face of officer testimony, and was never rehabilitated. Gonzales, 111 Wn. App. at 281.
Although Juror eight stated he had a slight bias toward law enforcement, unlike the juror in Gonzales, he unequivocally said that he believed he could give Gilbert a fair trial. Juror eight raised his hand after defense counsel asked "could I have a quick show of hands how many kind of agree with number [ten]?" But neither side asked Juror eight why he "kind of" agreed with the comments of Juror ten. At the very end of the second day of voir dire, defense counsel asked whether any of the jurors had anything they wanted to mention before concluding voir dire. Juror eight said that because of the software work he had done for law enforcement, "I kind of have a bias." But he said, "working on a good day I can, you know, I can put it aside and then keep an open mind. But in all honesty, on a bad day where I don't have the, you know, if I'm tired or whatever, it's gonna be gone, that's kind of my natural state because I feel like I've been working on products for kind of the State and the prosecution. So I just want to let you know that, but I can put it aside, but I just wanted to clear my conscience." Defense counsel then asked Juror eight if he could still give Gilbert a fair trial and Juror eight assured the defense that he could. Gilbert did not ask the court to excuse Juror eight for cause or because he showed actual bias. And the record does not show he could.
Sufficiency of the Evidence
In the alternative, Gilbert argues there was insufficient evidence to establish his identity as the shooter.
Evidence is sufficient when viewing the evidence in the light most favorable to the State, any rational trier of fact could have found the elements of the crime beyond a reasonable doubt.State v. Joy, 121 Wn.2d 333, 338, 851 P.2d 654 (1993). When challenging sufficiency, the defendant admits the truth of the State's evidence and all reasonable inferences must be drawn in favor of the State and interpreted strongly against the defendant. State v. Beasley, 126 Wn. App. 670, 689, 109 P.3d 849, rev. denied, 155 Wn.2d 1020, 124 P.3d 659 (2005). We give deference to the trial court in resolving conflicting testimony, weighing evidence, and drawing reasonable inferences. State v. Hayes, 81 Wn. App. 425, 430, 914 P.2d 788 (1996). "Circumstantial evidence and direct evidence have equal weight." Beasley, 126 Wn. App. at 689.
Viewing the evidence in the light most favorable to the State and drawing all reasonable inferences against Gilbert, the evidence establishes Gilbert was the shooter. During the confrontation between Below, Carlson, Weibl, Clewis, and Gilbert, Clewis asked Gilbert where his gun was. Below testified he heard someone say they were going to get a gun and saw Gilbert run off. Kassy Gordon testified that after Gilbert returned to the apartment, Gilbert went into the bedroom and she heard him open the closet door and heard the racking (cocking) of a semi-automatic handgun. After Gilbert left, Kassy testified that a minute later, she heard two gunshots.
Meanwhile, Clewis ran to Gilbert's apartment, but he was not there. But after Clewis returned to the area between buildings K and E, he saw Gilbert and decided to attack Carlson. Seconds later, a shot was fired, hitting Carlson. Below testified the shot came from the area where Clewis saw Gilbert standing. The shot was fired by an African American male. Below further testified that as Clewis was running up the hill toward him, another male was running behind Clewis. According to Below's testimony, there was nothing in Clewis' hands. Shortly after Clewis tackled Below, someone fired a shot, hitting Below in the back.
The police recovered two .25 caliber shell casings from the area between building K and E, where Clewis saw Gilbert standing. The police also recovered a box of .25 caliber ammunition from Gilbert's apartment, which was missing the Page 11 number of rounds necessary to fill a magazine. The two .25 caliber shell casings recovered by the police matched the bullets taken from Carlson and Below. Thompson testified the bullets were fired from the same gun, probably a Beretta. Gilbert purchased a .25 caliber Beretta two weeks before the shooting. All of the reasonable inferences that the jury could draw from this evidence proved that Gilbert fired the shots.
Firearm Enhancement
Gilbert also argues the trial court lacked the authority to impose a firearm enhancement because the legislature has created a procedure for imposing deadly weapon enhancements in RCW 9.94A.602, but has not created a procedure for firearm enhancements. In State v. Nguyen, 134 Wn. App. 863, 871, 142 P.3d 1117 (2006), this court squarely rejected the same argument and held that the deadly weapon enhancement statute also authorizes firearm enhancements.
DNA Testing
Gilbert argues the collection of a biological sample for DNA testing is an unreasonable search that violates Gilbert's rights under article I, section 7 of the Washington State Constitution and the Fourth Amendment of the Federal Constitution. This court considered and rejected the same argument in State v. Surge, 122 Wn. App. 448, 456, 94 P.3d 345 (2004), rev. granted, 153 Wn.2d 108, 111 P.3d 1190 (2005). The Washington supreme court affirmed in State v. Surge, 2007 Wash. LEXIS 293 (2007).
Additional Grounds
Gilbert raises a number of issues pro se that are also addressed by appellate counsel and previously discussed in this opinion. In addition, he challenges a statement made by Clewis at trial, "I told `em, don't call me Cuz, I am not no Crip, I'm not no Blood, just leave me alone" as violating the court's ruling on a motion in limine excluding any reference to gang membership. But because Gilbert does not provide any legal authority, we do not consider his argument. State v. Farmer, 116 Wn.2d 414, 433, 805 P.2d 200, 812 P.2d 858 (1991).
Next, Gilbert contends the court erred in denying his motion to suppress the evidence seized at his father's apartment. When the officers arrived at his father's apartment, they asked whether they could speak with Clewis and Gilbert. After Gilbert's father told the officers to come in, they detained Clewis and Gilbert. Later, after interviewing the two men, the officers obtained a search warrant for the apartment. We agree with the trial court's conclusion that "[t]he police officers did not enter Apartment E-202 to search for evidence. Accordingly, the warnings articulated in State v. Ferrier, 136 Wn.2d 103, 118-19, 960 P.2d 927 (1998), required to be given prior to receiving consent to search a home, were not necessary."
Gilbert also contends the court erred in refusing to admit potentially exculpatory evidence, which denied him his right to a fair trial. But because Gilbert fails to cite any authority, we do not consider this argument. Farmer, 116 Wn.2d at 433.
We affirm.